Citation Nr: 9835752
Decision Date: 12/04/98 Archive Date: 02/02/99
DOCKET NO. 98-08 940 DATE DEC 04, 1998
On appeal from the Department of Veterans Affairs Regional Office
in Des Moines, Iowa
ORDER
The following corrections are made in a decision issued by the
Board in this case on December 4, 1998:
On lines 15 and 16, the ORDER; "The appellant's claim for service
connection for the cause of the veterans' death is denied." is
corrected to read "The appellant's claim for service connection for
the cause of the veterans' death is granted.
CLIFFORD R. OLSON
Acting Member, Board of Veterans' Appeals
Citation Nr: 9835752
Decision Date: 12/04/98 Archive Date: 12/15/98
DOCKET NO. 98-08 940 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
Entitlement to service-connection for cause of the veteran’s
death.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs
Board
ATTORNEY FOR THE BOARD
J. M. Ivey, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1951 to
September 1965. He died February 1998.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision, dated April 1998,
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Jackson, Mississippi.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant, the widow of the veteran, contends that his
service-connected disabilities contributed to bring about his
death. She specifically asserts that her husband’s service-
connected gastric reflux disability contributed to his cause
of death, failure to thrive. The appellant contends that she
is entitled to dependency and indemnity compensation because
her husband died from a service-connected disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports service-
connection for cause of the veteran’s death.
FINDINGS OF FACT
1. The veteran was service-connected for the post operative
residuals of a Nissen fundoplication for gastric
diverticulum, with reflux esophagitis (originally diagnosed
as a hiatal hernia and mucus colitis), a dysthymic disorder,
defective vision in the right eye, rheumatic heart disease,
atrophic rhinitis, bronchitis hemorrhoids, sinusitis, and a
fractured 5th finger.
2. The cause of the veteran’s death, in February 1998, was
failure to thrive and Alzheimer’s. The death certificate
listed colon cancer and rheumatic valve disease as other
significant conditions contributing to the veteran’s death.
3. The service-connected conditions contributed
substantially and materially to cause the veteran’s death.
CONCLUSION OF LAW
The criteria for service connection for the cause of the
veteran’s death have been met. 38 U.S.C.A. §§ 1310, 5107
(West 1991); 38 C.F.R. § 3.312 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The claim is "well grounded" within the meaning of
38 U.S.C.A. § 5107(a) (West 1991). That is, the appellant
has presented a claim which is plausible.
All relevant facts have been properly developed. VA has
completed its duty to assist in the development of this
claim. See 38 U.S.C.A. § 5107(a). The appellant has not
reported that any other pertinent evidence might be
available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996).
The death certificate shows that the veteran died in February
1998, of failure to thrive. The approximate amount of time
between onset and death was three months. Alzheimer’s was
the other cause of death listed. Significant conditions
noted as contributing to death were a history of colon cancer
and rheumatic valve disease. There was no autopsy.
To establish service connection for the cause of the
veteran’s death, the evidence must show that a disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death.
38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (1998).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
contributory cause of death. 38 C.F.R. § 3.312(a).
Contributory cause of death is inherently one related to the
principal cause of death. In determining whether the
service-connected disability contributed to death, it must be
shown that it contributed substantially or materially to
cause death. It is not sufficient to show that it casually
shared in producing death, but rather it must be shown that
there was a causal connection. 38 C.F.R. § 3.312(b).
In December 1965, shortly after the veteran was discharged
from active duty, he was determined to be service connected
for a nervous condition, a hernia, defective vision in the
right eye, rheumatic heart disease, rhinitis, bronchitis,
hemorrhoids, sinusitis and a fractured fifth finger. He
received a combined rating of 70 percent disabled. An upper
GI series was conducted at a VA facility in October 1969.
This report showed a large diverticulum of the cardia. In
May 1983 the veteran underwent surgical procedures for Nissen
fundoplication, chest tube placement and fiberoptic
bronchoscopy. The veteran was treated at a VA Medical Center
in Biloxi, Mississippi for gastroesophageal reflux in October
1984. The report noted that the fundoplication was not
functioning.
In February 1985 the veteran’s rating for gastric
diverticulum was increased from 10 percent to 30 percent, and
in July 1992 that rating was increased to 60 percent. A
revision of the slipped Nissen fundoplication was conducted
in August 1992 at the VA Medical Center in Biloxi,
Mississippi. Pulmonary function studies dated November 1992
showed a mild restrictive disease. In May 1993 his combined
service-connected disability rating was increased to 80
percent. The veteran was admitted to the Biloxi VA Medical
Center in September 1994 for a surgical procedure concerning
a bowel obstruction. In November 1996 a stomach examination
was conducted which showed that he was poorly nourished and
30 pounds under weight. This exam also indicated a small
epiphrenic diverticulum was over the distal post esophagus.
The veteran was hospitalized January 1998 to February 1998
for Alzheimer’s disease and failure to thrive. On admission,
it was noted that he had suffered from and was treated for
gastroesophageal reflux disease, a urinary tract infection
and constipation. The medical record shows that he had a
history of rheumatic fever and colon cancer. The veteran
stopped all by mouth intake and was moved from the hospital
to a comfort care status in response to his wishes to
discontinue his current quality of life.
The RO requested a doctor at the VA Medical Center to review
of the veteran’s cause of death. The doctor opined that the
veteran “died from inanition secondary to a combination of
his service-connected condition, gastric reflux and
Alzheimer’s disease.” It was noted that “gastric reflux
does not ordinarily lead to death, but in combination with
Alzheimer’s disease can certainly shorten a patient’s life
span. It was the doctor’s opinion that gastric reflux
“should be considered as a complicating factor in this
veteran’s demise.”
The physician’s opinion could have been clearer. His
statement that the service-connected disabilities were a
complicating factor does not necessarily mean that they
contributed substantially or materially to produce death.
However, the comment that the service-connected disabilities
“certainly shorten a patient’s life span” must be viewed as
evidence that the service-connected disabilities made a
substantial and material contribution to bring about the
veteran’s death. In light of the history of the service-
connected disabilities, and giving the appellant the benefit
of the doubt, the Board concludes that the service-connected
disabilities did contribute substantially and materially to
bring about the veteran’s death. 38 U.S.C.A. §§ 1310, 5107
(West 1991); 38 C.F.R. § 3.312 (1998).
ORDER
The appellant’s claim for service connection for the cause of
the veterans’ death is denied.
CLIFFORD R. OLSON
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans’ Appeals.
- 2 -